Gilbert F. Chesnov, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01991052 (E.E.O.C. Feb. 24, 2000)

01991052

02-24-2000

Gilbert F. Chesnov, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Gilbert F. Chesnov, )

Complainant, )

)

v. ) Appeal No. 01991052

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

This matter pertains to claims of agency noncompliance with the terms of

a May 6, 1996 settlement agreement into which the parties had entered.<1>

See 64 Fed. Reg.37,660 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.504(b)).

As a threshold matter, the Commission notes that this case is not

entirely clear. By way of background, therefore, we begin our analysis

with our prior decision in Chesnov v. Department of the Army, EEOC Appeal

No. 01965545 (October 31, 1997) (hereinafter �Chesnov I�). Thereafter,

we will address the matter raised in the instant appeal (hereinafter

�Chesnov II�).

Chesnov I

Chesnov I concerned complainant's claim that the agency had failed to

comply with a settlement agreement (SA, or the agreement) that he and

the agency had entered into on May 6, 1996. As we stated in Chesnov I,

the SA provided in pertinent part �that:

[The Director, AED] assures that [complainant's] rater considers input

from the team on those objectives relating to team performance prior to

issuing a performance appraisal to [complainant].[<2>]

[Complainant's] current performance appraisal will be rescinded and a

new appraisal will be initiated incorporating [complainant's] duties as

a coach and facilitator as well as that of a supervisor.

...

9. This agreement will be implemented within 45 days from the date of

signature.

The specific issues in Chesnov I pertained, in relevant part, to

complainant's claims that the agency had failed to comply with the

SA within the time period of 45 days, as well as with the provisions

regarding the rescission of the old performance appraisal (PA) and

issuance of the new PA; and the assurance that complainant's rater would

consider certain factors. The Commission determined that �[B]ecause

it is not clear when or if the agency has complied with the [SA], it

would be premature to consider whether the agency's admitted failure to

implement all of the terms of the [SA] within 45 days from the �date of

signature' constituted a material breach of the [SA].� Id.

Accordingly, the Commission decided, in Chesnov I, to remand this

matter for a supplemental investigation and ordered the agency to

provide �evidence showing that the old [PA] was rescinded and that the

new appraisal was actually issued.� The Commission further ordered

the agency to �issue a new decision [within 30 days of the date the

Commission's decision became final] finding that it has complied with the

agreement, specifically implement the terms of the agreement, or notify

[complainant] in writing that it has reinstated the settled complaint

and will process the complaint in accordance with EEOC Regulations.�

Chesnov II

We now turn to the present matter, which we denominate Chesnov II.

The agency case file does not reveal any action by the agency in

compliance with the Commission's Order in Chesnov I, in particular the

issuance of a new decision declaring that the agency was in compliance

with the SA at issue.<3> Instead, we find, in the present case, that

complainant filed an appeal on November 19, 1998, advising the Commission

that the agency had not responded to his letter, of October 22, 1998,

informing the agency that it had not complied with the SA at issue. In

his October 22, 1998 letter, complainant specifically requested the

agency to implement the provision that Senior Rater-1 �assures that

[complainant's] rater considers input from the team on those objectives

relating to team performance prior to issuing a performance appraisal to

[complainant].�<4>

In support of his present appeal, complainant appears to have provided,

in relevant part, �a reverse appraisal from my team leaders on those

objectives relating to team performance,� for the period July 1, 1997,

through June 30, 1998. We note, as complainant himself acknowledged

on appeal, that complainant's November 19, 1998 appeal is prior to

the end of the required waiting period of 35 days for the filing of an

appeal where a notice of noncompliance with an SA has been served on an

agency.<5> See 64 Fed. Reg. 37,660 (1999) (hereinafter referred to and

to be codified as 29 C.F.R. � 1614.504(b)). Nonetheless, in the interest

of judicial economy, the Commission will entertain complainant's present

appeal.

64 Fed. Reg. 37,656 (1999)(to be codified and hereinafter referred to

as EEOC Regulation 29 C.F.R. � 1614.504(a)) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties, reached at

any stage of the complaint process, shall be binding on both parties.

The Commission has held that a settlement agreement constitutes a

contract between the employee and the agency, to which ordinary rules

of contract construction apply. See Herrington v. Department of Defense,

EEOC Request No. 05960032 (December 9, 1996). The Commission has further

held that it is the intent of the parties as expressed in the contract,

not some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In ascertaining the intent of the parties with

regard to the terms of a settlement agreement, the Commission has

generally relied on the plain meaning rule. See Hyon v. United

States Postal Service, EEOC Request No. 05910787 (December 2, 1991).

This rule states that if the writing appears to be plain and unambiguous

on its face, its meaning must be determined from the four corners of

the instrument without resort to extrinsic evidence of any nature.

See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377

(5th Cir. 1984). The burden of demonstrating noncompliance with an SA

is on the complainant. See Moore v. Department of the Navy, EEOC Request

No. 05930694 (April 7, 1994).

In the instant case, the Commission finds that complainant has failed

to meet his burden of demonstrating agency noncompliance with the SA at

issue, i.e., the SA dated May 6, 1996. We find that complainant's appeal

does not in fact pertain to his claim of noncompliance in Chesnov I, as

it relates to his 1994-1995 PA. Instead, we find that complainant has

filed an appeal alleging noncompliance when Senior Rater-2 purportedly

did not consider input from complainant's team pertaining to complainant's

1997-1998 PA.

We find that the SA at issue does not by its terms expressly apply to

prospective PAs issued to complainant or by subsequent Senior Raters.

In this regard, we find that Senior Rater-1, who was the subject

of the SA at issue in Chesnov I, is not the same individual who is

complainant's Senior Rater involved with complainant's 1997-1998 PA

(i.e, Senior Rater-2) in Chesnov II. Even if the Commission were to

find, arguendo, in the present case, that the SA at issue covered

complainant's 1997-1998 PA by Senior Rater-2, we find complainant has

offered no evidence that Senior Rater-2 issued him a 1997-1998 PA that

did not consider complainant's team's input. The Commission finds,

in fact, to the contrary. We find, from our review of correspondence,

dated December 8, 1998, and sent to the agency's activity's Chief of its

EEO Office, that complainant conceded that Senior Rater-2 complied with

complainant's October 1, 1998 request.

We find that, in his December 8, 1998 correspondence, complainant stated,

in relevant part, that �[a]ction taken by [Senior Rater-2], in response to

[complainant's October 1, 1998 request for compliance with the SA] has

resulted in a re-evaluation of my 1997-1998 [PA] inclusive of one annual

and two special appraisals.� We further find that, in his December 8,

1998 correspondence, complainant requested that, based on the evaluation

by his team, all three appraisals should be upgraded and, inter alia,

complainant should receive an increased monetary award for performance.

However, the Commission finds complainant's requests to be beyond both

the scope of the SA at issue and present appeal.

Based on our review of the record in the present case, the arguments

on appeal, including those arguments not expressly addressed herein,

the Commission finds, in the present case, that complainant has failed

to sustain his burden of showing that the agency was not in compliance

with the May 6, 1996 settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

February 24, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.

2For the purposes of the present decision, we will refer to the Director,

AED, as complainant's �Senior Rater-1.�

3The Commission notes, in this regard, that the agency issued a final

decision (FAD), dated August 13, 1998, on the merits of a complaint

filed by complainant in 1997, subsequent to the creation of the SA

at issue in the present case. The August 13, 1998 FAD, which made

reference to complainant's 1994-1995 appraisal, is not the subject of

complainant's appeal in the present case and, therefore, will not be

addressed in the Commission's decision in the instant case. We also

note that, on April 29, 1999, the agency sent the Compliance Officer,

responsible for monitoring the agency's compliance with the Commission's

Order in Chesnov I, what was purportedly a copy of complainant's revised

1994-1995 PA. For the reasons stated in our present decision, i.e.,

Chesnov II, the Commission will not address the issue of whether the

agency's purported revision of complainant's 1994-1995 PA is in compliance

with either the Commission's Order in Chesnov I, or, more specifically,

the May 6, 1996 SA.

4We also note a memorandum, dated October 1, 1998, from complainant

to his current Senior Rater (Senior Rater-2), wherein complainant

claimed, in pertinent part, that the agency had again not complied

with the SA at issue when complainant had received his 1997-1998 PA.

Complainant alleged that the provision purportedly breached pertained

to the assurance by Senior Rater-1 �that [complainant's] rater considers

input from the team on those objectives relating to team performance prior

to issuing a performance appraisal to [complainant].� In his October

1, 1998 correspondence, which correspondence complainant identified

as a �Request for Compliance with Negotiated Settlement Agreement,�

complainant averred that he had asked for his team leaders' evaluation

of certain relevant team objectives and asked Senior Rater-2 to include

that evaluation in complainant's 1997-1998 PA.

5Cf. 29 C.F.R. � 1614.504(b)'s requirement that a complainant �must

file an appeal within 30 days of his or her receipt of an agency's

determination� on the issue of the agency's alleged noncompliance.